June 2018 Legal Report


By: Milan Rada, Esq. with John Hewson, Esq.

In last month’s Legal Report we discussed how an administrative hearing pursuant to Sec. 207-c of the General Municipal Law (GML) is used to challenge an unfavorable line of duty determination by the Police Department. In that Legal Report we also mentioned that Deputy Chief Ronald J. Walsh, Jr. was to serve as hearing officer for the 207-c hearing which was held on April 25, 2018, the first such hearing held in about 10 years or even more. We have not yet received the decision in that case and a second 207-c hearing has been scheduled for June 11, 2018, in a new matter. Deputy Chief Walsh, Jr., will once again be serving as hearing officer. We will report on the outcome of these cases.

In addition to appealing determinations of whether or not an injury happened in the line of duty via a 207-c hearing, there is another appeal process, “Medical Review,”  to “appeal an initial determination of the Chief Surgeon, or his physician designee regarding [members’] line of duty or off-duty injury or illness AND [emphasis added] involving:

  1. [The member’s] ability to work in either a full or restricted duty capacity; or
  2. [The member’s] ability to work within [his/her] physical limitations while at work; or
  3. A determination whether a specific condition constitutes recurrence of a previously sustained line of duty injury; or
  4. Medical issues as to whether an illness or injury was sustained in the line of duty [emphasis added; this may sound like a line of duty or non-line of duty determination, but there is a fundamental difference, i.e., is the manner in which the injury occurred reasonably expected to cause the claimed injury?]; or
  5. A determination as to the length of time it may be necessary for a member’s disability to resolve.

As discussed in last month’s Legal Report, we want to emphasize that as in GML Sec. 207-c hearing cases, Medical Review matters also begin with your line of duty injury; Art. 7, Rule 7 of the Nassau County Police Department Manual states: “When injured while acting within the scope of official duties:

  1. Full pay will be granted to Members of the Force for injuries received while acting within the scope of official duties when such injury has been reported to the member’s Commanding Officer within seven (7) days after the injury was sustained and it can be conclusively shown that the disability was actually received while the member was performing police duty and that no negligence on the member’s part contributed thereto. This time limit may not be extended except by approval of the Commissioner of Police” [emphasis added].

Notification of the injury to the police department must be done by completing an aided packet; it is our preference that you complete a full aided packet as opposed to a non-recordable report for the key reason that a full aided packet will result in the Police Department filing a Workers’ Compensation form C-2, while a non-recordable will not. Your accident report should be accurate and thorough enough so that the mechanism of your injury (i.e., how you were injured) is completely transparent; if some defect, like a collapsing step, or a ladder that broke, caused your injury, you MUST be certain to include this fact in your accident description. You should also be very careful to make sure that all the paperwork you complete in connection with your Workers’ Compensation claim, or any other legal claim, contains the same description. (See prior editions of the Legal Report for discussions on the important difference between an “accident” and an “incident.”) Make sure to include ALL the body parts that you injured. If your neck hurts immediately and very badly but you also “bumped” or “jarred” or “poked” your knee, you must also include your knee as an injured body part. If you do not and you later seek to make your injured knee a part of your case, the Police Department will push back hard against your attempt to add a further injury to your accident report and will not grant you an I-number for an injury not reported on your initial paperwork, although you may be successful at establishing a consequential injury in your Workers’ Compensation case. With no I-number you do not get the full salary that comes along with GML Sect. 207-c benefits (unlimited line of duty sick pay) and you burn your accumulated sick time when you are not able to work. So, if with proper treatment, your neck is no longer disabling, and you are able to do RA but your knee injury is becoming progressively worse and you wind up needing surgery on your knee you will burn your own sick time because the Police Department will take the position that your knee injury is not causally related to your accident, all because you did not list your knee as being injured on your initial accident report. Take your time completing your accident report because it may prove to be extremely significant in the future. If you have any doubts about completing your accident report please contact your PBA delegate, trustee or us for guidance.

The Medical Review process, for example, typically begins like this: you have been out of work on line of duty, 207-c pay status for 90 days due to a line of duty injury to your knee. You have been seeing your treating orthopedist regularly who feels that you are not yet capable of returning to restricted duty. However, at your next scheduled appointment with the Police Surgeon he determines that you are fit for restricted duty and orders you to so report. Obviously you must follow this lawful order of the police surgeon. This is where Medical Review comes in.

From the time you have “personal receipt of the Chief Surgeon’s determination” regarding your fitness for RA you must submit a written request for Medical Review within 30 days to the Commanding Officer of MAO. The Memorandum of Understanding (MOU) that established the Medical Review process provides that the CO of MAO MUST immediately notify and transmit a copy of your request for Medical Review to the Chief Surgeon’s Office AND to the PBA. Notification to the PBA is a very important step n the process because this is when the PBA becomes aware that you have requested Medical Review so that the PBA will be able to take all necessary steps to assist you with your appeal, steps that MAO and the Chief Surgeon’s Office will most assuredly NOT take even though they have the means to do so. To be safe, when you request Medical Review have MAO give you a date stamped copy and call the PBA to alert them that you have made the request.; as an even greater precaution you should also make sure that you send a copy of the date stamped request to the PBA. To be fair the MOU does impose certain obligations on the PBA, but in the absence of the required notice from MAO, or you, the PBA has no knowledge of a request for Medical Review. In the absence of notifying the PBA, MAO and the Chief Surgeon’s Office, at the very least, should do all it can to assist you by providing ALL the medical evidence it has access to, including whatever objective test results and medical reports they already have from treating physicians; in recent cases MAO and the Chief Surgeon’s Office have not done so.

You must keep in mind that you have 30 days from the day you receive the Chief Surgeon’s determination that you are able to do RA, to request Medical Review. It is our emphatic suggestion that you use these 30 days to your advantage, because be assured that MAO and the Chief Surgeon’s office will use every opportunity to its advantage and to your disadvantage. As soon as you request Medical Review, step one (1) of the process begins: a Police Surgeon will contact your treating physician to see if they can come to a meeting of the minds regarding your ability to do RA. If both physicians agree that you can do RA, then you have lost Medical Review and you must return to work RA. If both physicians agree that you cannot do RA, then you have won Medical Review and you remain on line of duty sick time. If the Police Surgeon and your physician cannot come to an agreement regarding your ability to do RA, then the next step in the process is for you to be examined by a “third neutral doctor.”

There have been problems when you take the very short walk from the Chief Surgeon’s Office where you have just been ordered to RA and walk right into MAO to request Medical Review: the Chief Surgeon’s Office will be on the phone to speak with your treating physician before you have reached your car in the parking lot. When you request Medical Review you are asked to provide the name and telephone number of the physician you want the Police Surgeon to contact. If you do not give your physician a head’s up, if you do not review your medical condition, and treatment and meds with your treating physician before a Police Surgeon calls him, you have put yourself and your treating physician in a no win position: when the Police Surgeon calls, your doctor may be very busy handling a waiting room full of patients and completely unprepared to discuss your condition, your doctor may not have your medical file available for review or your treating doctor may be intimidated by the Police Surgeon, or all of these. However, you can only remain out of work if you request Medical Review, so it is our suggestion that you request Medical Review right away, but do not indicate who the Police Surgeon should call on your behalf until you have had the opportunity to discuss your designated physician with the PBA, until you have spoken with your physician to alert him to expect a call from the Police Surgeon, to find out when is the best time for him to discuss your medical condition with the Police Surgeon and the opportunity for you to confirm your treating physician is current on your meds, complaints, restrictions and limitations.

If at all possible make an appointment with your treating doctor within the 30 days allotted to you so that your doctor has the benefit of a recent physical exam on which to base his discussion with the Police Surgeon. However, be very certain to provide the name and telephone number of your treating doctor, or any other physician you designate, to MAO within the required 30 days; MAO will hold you very exactly to your requirements and if there is any way for giving you or the PBA tsuris, MAO will. The PBA has found that MAO has applied a very technical approach to its interpretation and implementation of the MOU.

In the meantime stay safe, but if you are injured in the line of duty may it be the result of an accident not an incident. If you have any questions regarding this Legal Report or claims involving Workers’ Compensation, Accidental Disability Retirement (3/4), Social Security Disability Insurance, Veterans’ Disability or Personal Injury Accident cases, please do not hesitate to contact us at 516.941.4403 or mrada@fbrlaw.com.

Because of our dedication to the members of the PBA we will always do whatever it takes to protect the interests of police officers, their families and friends.

 

 

 

May 2018 Legal Report


By: Milan Rada, Esq. with John Hewson, Esq.

You may have heard rumors that the Police Department has begun to schedule “207-c” hearings. The rumors are true. So, what is a “207-c” hearing and why is it important to you?

 

“207-c” hearings are held pursuant to NYS General Municipal Law (GML) Section 207-c, which provides that a Nassau County police officer (among other law enforcement throughout NYS) will be paid full tax free wages when injured in the performance of duty. In order to protect this benefit,  there are some critical steps you must follow.

It all begins with the line of duty injury.  Art. 7, Rule 7 of the Nassau County Police Department Manual states as follows: “When injured while acting within the scope of official duties:

  1. Full pay will be granted to Members of the Force for injuries received while acting within the scope of official duties when such injury has been reported to the member’s Commanding Officer within seven (7) days after the injury was sustained and it can be conclusively shown that the disability was actually received while the member was performing police duty and that no negligence on the member’s part contributed thereto. This time limit may not be extended except by approval of the Commissioner of Police.”

Notification of the injury to the police department will be done by completing an aided packet; it is our preference that you complete a full aided packet as opposed to a non-recordable report for the key reason that a full aided packet will result in the Police Department filing a Workers’ Compensation form C-2, while a non-recordable will not. Your accident report should be accurate and thorough enough so that the mechanism of your injury (i.e., how you were injured) is unambiguous and clear. If some sort of defect, like a collapsing step, caused your injury be sure to include this fact in your accident description. (See prior editions of the Legal Report for discussions on the important difference between an “accident” and an “incident.”) Make sure to include ALL the body parts that you injured. If your neck hurts very badly but you also “bumped” or “tweaked” or “poked” your back, you must include your back as an injured body part also, because if you do not and you later seek to make your injured back a part of your case, the Police Department will  push back hard against your attempt to add a further injury to your accident report and will not grant you an I-number for the injury reported subsequently. With no I-number you do not get the full salary that comes along with GML Sect. 207-c benefits and you burn your accumulated sick time for when you are not able to work. So, if with proper treatment, your neck is no longer disabling, and you are able to do RA but your back injury is becoming progressively worse and you wind up needing surgery you will burn your own sick time because the Police Department will take the position that your back injury is not causally related to your accident and all because you did not list your back as being injured on your initial accident report; this is the most typical issue to be resolved by a GML Sect. 207-c hearing.

After reviewing your aided packet, the Police Department will notify you of its determination if it finds that the injury did not occur in the line of duty. From the time of this notification, you have 30 days to submit a written request to the CO of MAO for a “207-c” hearing. According to the Memorandum of Understanding, Medical Review Board and Administrative Hearings, “The [207-c] hearing shall be scheduled to be commenced at a mutually agreeable date and time within sixty (60) calendar days of the receipt of the request for such hearing at the Medical Administration Office.” Further, the Memorandum cautions of a tough penalty: “If the Department does not conform to any of the aforementioned time limitations, unless extended by mutual agreement, the member, active or separated shall receive his full entitlement of sick leave accumulation upon termination of service.” However, the Memorandum is equally tough on the police officer: “If the member does not conform to any of such time limitations, the appropriate sick leave will be deducted upon termination of service.” So, you must be absolutely certain to notify the police department of your injury within seven (7) days, and you must request a “207-c” hearing within 30 days of being advised that your injury is not being considered to have happened in the line of duty.

If you have already been through a Workers’ Compensation case then the “207-c” hearing process will be pretty familiar to you, but with one KEY difference: In a “207-c” hearing the Police Department appoints the hearing officer from police department ranks, whereas  a Workers’ Compensation case is presided over by an independent, neutral administrative law judge. So, you may be asking yourself a fair question: What are my chances of succeeding in a “207-c” hearing where the police department is the judge, jury and executioner? If you’re thinking that your chances are not really good, you are almost always right; appellate division cases have already held that it’s Okay for the police department to appoint the hearing officer from its ranks. In one “207-c” hearing that has been scheduled, Deputy Chief Ronald J. Walsh, Jr. has been selected to serve as the Departmental Hearing Officer in the upcoming hearing.

As an example of a “207-c” issue consider the case of a police officer who broke his right foot in a fall on duty.  On his accident report the police officer listed his injury as “right foot.” Subsequently the police officer developed tarsal tunnel syndrome of the right foot. Since tarsal tunnel syndrome was not listed on the accident report, the police department has taken the position that the tarsal tunnel syndrome is not causally related to the cop’s injury.  In a future Legal Report we’ll let you know how the outcome of any “207-c” hearings which have been heard and decided.

In the meantime stay safe, but if you are injured in the line of duty may it be the result of an accident not an incident. If you have any questions regarding this Legal Report or claims involving Workers’ Compensation, Accidental Disability Retirement (3/4), Social Security Disability Insurance, Veterans’ Disability or Personal Injury Accident cases, please do not hesitate to contact us at 516.941.4403 or mrada@fbrlaw.com.

Because of our dedication to the members of the PBA we will always do whatever it takes to protect the interests of police officers and their families.

 

 

April 2018 Legal Report


By: Milan Rada Esq., with John Hewson, Esq.

An incredibly illustrative set of cases was recently decided by New York State’s highest court, the Court of Appeals, regarding the issue of “accident” versus “incident” in the realm of disability pension cases.  For years, you have read how difficult the Retirement System has made the issue of what constitutes an “accident” under its definition.  Very rarely have we seen a case that has made its way through the appeal process all the way to the highest court in the state.  The Court of Appeals was going to be required to weigh in at some point because amongst the different Judicial Departments of New York State, there appears to be some split as to what defines an “accident” under the law.  The Third Department in Albany, which provides precedent over the disability pensions for not only Nassau County Police Officers but also all Police Officers throughout New York State except for NYPD officers, has been notoriously strict and limiting in what defines an “accident.”  However, by comparison, the First Department overseeing New York City police disability claims, has been considerably more liberal when it comes to defining an “accident.”   Thus, what might be an “accident” in the New York City system might only be an “incident” within the State system.  The Court of Appeals attempted to rectify this disparity.

 

Unfortunately, what the Court of Appeals did was simply confirm what we have been writing about for years.  When it comes to the term “accident” and the Retirement System, its logic is sometimes absurd and completely illogical.  The Court of Appeals, and in particular one dissenting judge, pointed that out brilliantly in its latest decision.  That being said, the lack of clarity provided in this decision only further evidences the fact that the only way to protect oneself in this area is to have a proper understanding of what the Retirement System is hoping to see when it comes to an “accident”, and even that sometimes is not enough.

 

In the Matters of Kelly v. DiNapoli and Sica v. DiNapoli, the Court of Appeals notes that it was asked whether the petitioners in both cases were entitled to accidental disability retirement benefits by proving they were injured in “accidents” as this term is defined under Section 363 of the Retirement and Social Security Law.  Both applicants, the petitioners in this appeal, were first responders.

 

James Kelly was an Orangetown Police Officer who was on duty during Hurricane Sandy.  He was directed by his supervisor to take shelter and only respond to life-threatening calls.  He and a fellow officer responded to a house onto which a tree had fallen trapping the occupants inside.  Kelly noticed that the tree had knocked down half the roof, a rear wall, and the structure appeared very unstable.  In fact, one of the occupants had been impaled by the tree and driven through the floor into the basement, and the other occupants were trapped beneath debris. Officer Kelly felt pain in his shoulder as he moved the debris but continued to perform his life saving tasks.  When he noted that a rafter from the roof began to fall, Officer Kelly braced the rafter further injuring his shoulder and neck.

 

Pat Sica was a firefighter for the City of Yonkers who responded to an aided call for two unconscious individuals at a local supermarket.  When he arrived he found the two individuals, one outside the walk-in freezer and one inside.  He did not notice any fumes or chemicals, or smell or take notice of any odors in the area.  He performed CPR for roughly 25 to 30 minutes on the individual inside the freezer.  Shortly after assisting the victims, he began to feel nauseous and light headed.  He was taken to the emergency room, and it was determined that he had been exposed to toxic gases in both the supermarket and the walk-in freezer.

 

In analyzing these two claims, the Court went back to the past history of the accident definition as it related to this area of case law.  It cited to the terms that we have shared with you for years: “unexpected, out of the ordinary, and injurious in impact”.  Believe it or not, that definition and language dates back to a case from 1958.  And that language is still being quoted today, sixty years later!  The Court then cited to the lineage of cases that holds that the precipitating accidental event cannot be a risk of the nature of the work performed.  This is sometimes repeated back to us as the “inherent risk” standard.  The Court spent several pages then citing to countless other cases that have adopted (and narrowed and limited) that definition dating back to the early 1980s.

After performing this exhaustive history lesson on cases in this area, the Court came to its all too familiar conclusion: neither one of the events with Officer Kelly or Firefighter Sica constituted “accidents” under the law.

 

The Court concluded that the substantial evidence of record supported the Retirement System and Comptroller’s decision to find these as “incidents” rather than “accidents,” thus disqualifying Kelly and Sica for 3/4s (accidental disability retirement).  The logic dealt more with the procedural notion that the final decision in these matters rests with the Comptroller, and unless that decision defies all logic, then the decision must be affirmed by the courts.  They found that it was at least rational and reasonable for the Retirement System to conclude that Officer Kelly, though also instructed to seek shelter, was only performing the life-saving activities that he was instructed to perform by his supervisor and injuries incurred during the performance of those duties was a risk inherent in the duties of a police officer.  Similarly, for Firefighter Sica, the Court found that responding to scenes with unknown toxins in the air is not uncommon for  firefighters who may be posed with those type of hazards on a daily basis but are still charged with responding to aided calls.

 

As an avid reader of the Legal Report, we are sure that you are not shocked by this conclusion.  How could you be?  We have seen this countless times over the past plus two decade(s). The courts are consistently using every angle to deny accidental disability benefits.  But after reading those accident descriptions, one would be in a huge group of people that feels that those should clearly be “accidents” under the law.             There was one judge at the Court of Appeals who would fall into that category and who disagreed with the majority decision (at least as it regarded Officer Kelly – he happened to agree with the rest of the Court on Firefighter Sica).     In a scathing dissent, Judge Wilson attacked the almost wild west mentality and complete inconsistency in the substantive case law on this issue.  He cited example after example of seemingly illogical conclusions made by the courts over the years on what would be an “accident” versus an”incident.”  For instance, he sarcastically writes, “If your superior officer gives you a choice between participating in a boxing match or a tug-of-war, pick the boxing match, because injury in the former, but not the latter, qualifies as accidental.” (As an exercise, ask yourself what’s the difference, in terms of “accidental” injury being injured in a boxing match versus a tug of war?). He simply has noted what we have all known for years – consistency in this area is not the hallmark of the Retirement System.

 

Where does this leave accidental disability pensions and claims in the wake of these decisions?  From our perspective, unfortunately nothing has really changed. Judge Wilson opines that this area of the law requires legislative overhaul, and in the interim, while waiting for that fantasy to come true, he believes that the Retirement System should instead view these cases in light of what the risks are that you have bargained for by becoming police officers.  While we believe that would be a fair resolution to this analysis, we simply do not believe that the Retirement System would dare entertain this standard.  Therefore, we continue to stress the same advice we have for many years in this area.  When you are injured in the line of duty, the initial documentation matters as much as anything else that will come later in the claim.  Thus, the initial reports must be thorough, factual, and complete.  While we do not advocate or believe it necessary to write a novel for each accident on the job, we do know that the reports will need to be full of the facts that will support the finding that the event is out of the ordinary, unexpected, and outside of the control of the injured police officer.

 

Of course, if you have any questions or comments regarding this important Legal Report article, or any other topic, please do not hesitate to contact our office at 516-941-4403, or by e-mail at mrada@fbrlaw.com.  In the meantime, please stay safe, but if you do find yourself injured, let them all be as a result of an “accident”!